Study On The Determination Rules Of Parent-child Relationship In Surrogacy

Although surrogacy is strictly prohibited in our country,because of the existence of surrogate demand and the progress of science and technology,the surrogate phenomenon still exists.Surrogacy not only can provide children opportunities for infertility,but also impacts the traditional social ethics and the legal system.Because of the legislation of our country without proper regulation of surrogacy,surrogate parentage caused a lot of controversy.Although surrogacy is illegal,surrogate children is an objective existence,the law should confirm the legal status of the surrogate children,so as to solve the problem of monitoring surrogate children and raising surrogate children.Based on the study and Analysis on Cognizance of the extraterritorial legislation on surrogacy of parent-child relationship,the various theories on the cognizance of the surrogate parent-child relationship is analyzed,in order to build the Study on the determination rules of parent-child relationship in surrogacy,to protect the surrogate child's interests,to safeguard the authority of law and justice.This paper is divided into five parts:The first part: the introduction of the problem.In the part,the first custody dispute case caused by surrogacy is introduced,for this case,the court of first instance and the court of second instance made different sentence.Based on the analysis of two court differences,the determination rules of parent-child relationship in surrogacy is introduced.The second part: the necessity of research on the determination rules of parent-child relationship in surrogacy is introduced.Based on a brief analysis of the current situation of China's surrogacy,we can draw a conclusion that the surrogate phenomenon still exists in china,so there are problems involving surrogate child's identity.But China's current legislation on paternity can not be a good surrogate in parentage identification,making the pregnant children identity is unstable state,It is not good to surrogate child's physical and mental health,and lead to the judge in judicial practice are different judgment on such cases.So it is necessary to study and improve the identification rules of surrogate parentage.The third part: the investigation and analysis of foreign law.This part introduced the determination rules of parent-child relationship in surrogacy in other countries,in these countries,surrogacy is absolutely prohibited or commercial surrogacy is prohibited,or commercial surrogacy is allowed.Based on the comparison and analysis on the extraterritorial legislation,a lot of reasonable constructions can be found to set up our country'sdetermination rules of parent-child relationship in surrogacy.The fourth part: introduction and analysis of surrogate parent-child relationship identification theory.This part introduces four kinds of theory on the identification of surrogate parent-child relationship: the theory of gene said,delivery said,contract said,the best interests of the child said,the four theories determine parent-child relationship With different standards.These theories can provide some references for us.The fifth part: the construction of rules for the determination of surrogate parentage.This part proposes that China's surrogacy relationship should be based on the principle that giving birth should take precedence over genetic principles,the principle of the best interests of the child,and the principle of preventing abuse of surrogacy.Then,under the guidance of the principle,combined with the current parent-child law in our country,the specific recognition rules for surrogate parent-child relationship are proposed:the surrogate mother obtains the identity of the surrogate mother according to the principle of “ the childbirth is the mother”.On the basis of determining the identity of the mother,according to rules such as the presumption of legitimate children,the denial of legitimate children,or the claim of children born out of wedlock,the husband of surrogate mother is determined as the surrogate child's father,or the husband of the entrusted couple is determined as the father of a surrogate child.At the same time,the provisions of our country ' s laws on the preparation of blood-bearing parent-child relationships can also be applicable in surrogacy.In compliance with the provisions of the Adoption Law,entrusted couples may adopt foster children.Based on the maintenance of the interests of surrogate children,the surrogate child can be identified as the step child of the entrusted spouse's wife by lawfully expanding the interpretation of the existing laws and regulations.The child can adopt the surrogate child in accordance with the provisions of the Adoption Law.Or,after the foster children have been educated for surrogacy,establish parent-children relationship.